Maxwell v. State , 32 Ala. App. 487 ( 1946 )

CARR, Judge.

Appellant was tried in ,the circuit court upon an indictment charging murder in the second degree. He was convicted of manslaughter in the first degree and his punishment fixed at imprisonment in the penitentiary for a term of five years.

Admittedly the defendant killed the deceased by shooting him with a pistol. Without dispute in the evidence, the accused was in his home at the time of the fatal difficulty. The deceased left the inside of the house and with a rifle in hand walked outside; and when in or near the yard surrounding the dwelling, the appellant, while standing in a door to his home, shot the deceased. The defendant claimed self:defense.

The trial judge in an able and comprehensible oral charge gave the jury the applicable law in the case.

Objections - were interposed by the appellant to the alleged dying declarations of the deceased. This evidence was established by two witnesses and related to two different statements of the declarant. The first, it appears, was made1 about two days and the second about one day before death.

The State made proof that on each occasion the deceased said that he was going to die.

We find no difficulty in concluding that the proper predicate was based for these declarations. The rule was clearly observed. Russell v. State, 24 Ala.App. 496, 137 So. 460; Martin v. State, 196 Ala. 584, 71 So. 693.

On the motion for a new trial two questions are presented that merit our special consideration.

It is insisted by appellant that during the progress of the trial and while witnesses were being examined one of the jurors went to sleep or at least nodded and appeared to be asleep. In response to proof tending to establish this contention, each of the twelve jurors was examined and each denied the accusation. The inquiry thereby became a disputed issue of fact and, regardless of any comment we may be inclined to make about the matter, we will let it rest by observing that the judge not only tried the case but heard the evidence in support of the motion. We will not disturb his sound judgment.

The other inquiry- relates to claimed newly discovered evidence. It is urged that a nurse heard the deceased make a statement while the latter was in the hospital after he had received the pistol wound. The young lady testified at the hearing on the motion, and we quote her entire testimony as she gave it on direct examination:

“Q. Miss Dodson, you are a registered nurse? A. Yes, sir.

"Q. A nurse at the Decatur General Hospital ? A. Part time, yes sir.

“Q. Were you a nurse there when this Mr. Fowler who was shot and died, were you his nurse part of the time? A. Yes, sir.

“Q. During the time he was out there in the hospital did you hear him say anything about Mr. Maxwell? A. I didn’t hear him call his name, no, sir.

“Q. What did you hear him say? A. The only statement he ever made was that he didn’t want anything done with Mr. Maxwell.

“Q. Is that all he said? A. Yes, sir.

“Q. Did he say anything about part fault, or he wasn’t altogether at fault? A. Yes, sir.

“Q. And he didn’t want anything done to him? A. Yes, sir.”

On recross-examination the witness said that she could not remember when the statement was made in point of time before the patient died.

It is apparent that we are unable to determine whether or not this evidence could have been made material on the trial in chief. Certainly the rights of the appellant have not been impaired by the action of the lower court in overruling the motion, if this new evidence would have been subject to rejection had it been tendered on the main trial.

The rule requires, among other conditions, that newly discovered evidence be material' to the issues based in the master trial. Morris v. State, 25 Ala.App. 156, 142 So. 592.

This conclusion permits us to forego a discussion of the other essential inquiries that enter into the solution of the instant question.

The motion for a new trial, on each ground set out therein, was properly overruled. Freeman v. State, 30 Ala.App. 99, 1 So.2d 917.

•We will next consider the written charges that were refused to appellant.

Charge numbered 1 states a proposition of law, but omits instructions as to how it has application to the issues in the case at bar. Fleetwood v. Pacific Mutual Life Ins. Co., 246 Ala. 571, 21 So.2d 696, 159 A.L.R. 171.

Refused Charge 3 contains the same vice. Counsel for appellant in brief insists upon the correctness of this charge because a similar statement is found in the body of the court’s opinion in the cases of Crawford v. State, 112 Ala. 1, 21 So. 214, and Clack v. State, 29 Ala.App. 377, 196 So. 286.

This alone does not make the charge acceptable. As was observed in Wear v. Wear, 200 Ala. 345, 76 So. 111, 114: “It is a mistake to suppose that expressions in judicial opinions, properly there used, can be made to serve as clear, succinct statements of the law in special charges to the jury.” See, also, Fleetwood v. Pacific Mutual Life Ins. Co., supra.

Charge 2 ignores the requisite of imminent danger to life or limb and the impending necessity to kill. Sanford v. State, 2 Ala.App. 81, 57 So. 134.

It should be noted also that in the case at bar there was no evidence that the deceased was attempting any violence against any member of appellant’s family.

In Roberson v. State, 175 Ala. 15, 57 So. 829, a copy of Charge 7 was disapproved.

The question of who was at fault in bringing on the fatal difficulty was made a jury question by the evidence. Therefore, charge numbered 8 is faulty for this reason. Ludlow v. State, 156 Ala. 58, 47 So. 321.

Written instructions 13 and 24 were each substantially and fairly covered by the oral charge of the trial judge. Title 7, Sec. 273, Code 1940.

Charge 17 was approved in Bufford v. State, 23 Ala.App. 521, 128 So. 126. In Shikles v. State, 31 Ala.App. 423, 18 So.2d 412, its refusal was justified because it was nothing more than an instruction on reasonable doubt, and the court had covered this principle in his oral charge. In the instant case, we are authorized to make the same holding and place the propriety of the refusal of the charge on this ground. Authorities, supra. However, it appears that our Supreme Court in Robinson v. State, 243 Ala. 684, 11 So.2d 732, has settled the apparent confusion, therein holding that the charge has misleading tendencies.

Charge 20 singles out and gives undue emphasis to a part of the evidence. Watts v. State, 8 Ala.App. 264, 63 So. 18; Jefferson v. State, 8 Ala.App. 364, 62 So. 313.

Refused charges 22 and 25 assume facts which are in conflict in the evidence. Continental Gin Co. v. Milbrat, 10 Ala.App. 351, 65 So. 424.

The defendant having been adjudged guilty of manslaughter, the refusal of Charge 23 could have no harmful effect. Brake v. State, 8 Ala.App. 98, 63 So. 11.

There appear of record several objections interposed during the time the testimony was being taken. We have herein treated the ones of most meritorious import. To discuss each of them would be, in our opinion, an unprofitable undertaking. Counsel in brief does not urge error in any of these rulings.

Our considered opinion is that the judgment of the nisi prius court should be affirmed, and this is ordered.

Affirmed.